Toilet discrimination – and worse?

Just as i was thinking that the UK was streets ahead of the US when it comes to using loos, a story surfaces of what appears to be out and out anti-trans discrimination down in Poole. The details, as published so far, and in this report in Pink News, seem to be fairly open and shut.

A trans woman – Vicki Saxe-Coburg used the female loos at Poole Stadium during a speedway event. She was then confronted by security, in public, and asked to use the disabled ones instead. They claimed another spectator had complained about her.

Returning to the stadium a week later with a doctor’s letter confirming her transition, she raised the matter with the stadium management but allegedly “did not get very far with her complaint”.

All pretty awful stuff, although i’d have to add that i’m not especially happy about the story yet, either.

That is, there’s a lot of background that isn’t yet out in the press…so i will be diging over the next week.

However, i do not hold out much hope of getting the FULL story. My first calls today – to the speedway team and the stadium – were thoroughly stonewalled. The speedway team were fairly offhand, to the point of rudeness.

The stadium staff took a most unusual approach to press relationships. I was phoned by “a spokesman” who explained he was only phoning to say “no comment” – and who would not give me his name.

That really IS unusual. My only hope is that this individual is either low down the management food chain, or they are still working out how to react. I certainly cannot remember exactly the last time that a “spokesman” refused to give a name.

(Think it was in respect of some very dodgy dealings by a school… and a member of staff would talk to me, but refused to give a name which, for purposes of responsible journalism, is next to useless).

Anyway, thought i’d mention this in public because a) i will also be trying to get hold of vicki over the weekend and b) if anyone else has any closer/inside info, i’d be grateful if they’d drop me a line.

jane
xx

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Megan said,

Where do these companies legally stand of stopping a person using the correct toilets? I always thought that unless you were being fraudulent or a pervert, of which a trans person isn’t and especially a transsexual who is under care of a GIC with a GP note then you are legally within your right to use the toilets of the gender you identify as and they cannot legally stop you going.

They all seem to love the excuse someone is upset or feels under threat; don’t they have to prove this and what would happen if this happened to a cisgendered person?

Good question – to which there may not be an immediate answer (since we need to wait a little for case law to catch up). First, if one is post-op and/or with a full gender recognition certificate, then for almost all practical purposes, one counts as one’s acquired gender. In such case, refusal to provide a service is sex discrimination pure and simple.

One caveat…i seem to remember one or two very very specific exceptions to this provision, but maybe someone else can provoke my memory on that.

If pre-op/not in possession of a grc, but having embarked on a course of treatment in respect of gender dysphoria, one is covered by s7 of the Equality Act 2010, which makes provision of a service on a discriminatory basis to those defined in this way as transgender unlawful.

So-o…where’s the wiggle room that some lawyers may yet try to exploit? First, exceptions agreed in law. As i say, can’t remember off hand, but i am pretty sure they are there.

Second, there is some grey area, even with a fairly tight definition as to what counts as transgender. I believe (its late…i’m not looking it up to check!) that the law talks about starting treatment or intending to…which means that those at the very beginning of the process and most at risk may be those most subject to subjective considerations.

Finally – and here is where i can see a coach and horses being driven thru the law: what is the “service”? I very much doubt that provision of a toilet – if not paid-for – is a “service”. Therefore, owners of facilities such as Poole stadium may well argue that what they are providing is a total service package (an evening of speedway) within which the ability to go to the loo is just one small element. They could then argue that allowing trans women to use the disabled facility means that their “service” does not exclude trans women from the toilets…so they ain’t discriminating.

I do not think that was the legal intent. I can see one or two judges going along with such an argument…which means that we are still in uncharted water.

A couple of precedent cases along those lines would…be a major setback.

Megan said,

Sorry, I never meant for you to reply at such a late hour, but thanks 🙂

It’s the one thing that I have never been totally sure of, and even with your extensive knowledge it’s a grey area.

I tend to agree with the last paragraph, if they allow a trans woman/man to use the disabled toilets instead then they have provided a service, I feel it’s very very wrong but it’s a loop hole they can get out of.

Thanks for the reply, it has helped to clear my mind on where we stand (or sit ;)).

Good luck for the operation soon 🙂

Megan
xx

4

Paula said,

GRA and Equality Act 2010 sort this out thoroughly.. if you identify as trans you are legally allowed to use whichever facilities you feel comfortable using.. Being prevented is a deliberate act of “discrimination by assumption” .. They have broken 2 laws and should be prosecuted.

we-ell. I am going to pull rank by virtue of being local and also by virtue of spending half my life writing about legal matters. I think there is a “fair presumption” that the Equality Act 2010 does this…but it has still to be tested, and it would not surprise me if there was not some degree of court reversal along the way. We shall see.

Also, the EA and the GRA do two wholly different things…and are concerned with quite different groups of people. The GRA is about re-assigning legal gender, after which individuals who are, say, trans women are quite simply covered as women.

The EA is about those with the “protected characteristic” of transgender, and this includes everyone undergoing or probably proposing to undergo treatment in respect of gender dysphoria.